Fair Use is in the Eye of the Beholder…or Not by TTW Contributor Troy Swanson 1

I have a decent understanding of copyright and the process of determining fair use, but I didn’t have a good understanding of how YouTube enforces and adjudicates copyright disputes. I’ll own up to my naiveté, but even after acknowledging this, I am still troubled by YouTube’s approach to copyright enforcement.

I thought about titling this post, “I Fought the Law and the Law Won,” but the problem is that this whole thing isn’t really about the law at all. In YouTube Land, it doesn’t really matter if your use of copyrighted material falls under fair use or not. What matters is that content creators can use YouTube’s enforcement tools to shutdown your account and make life so difficult that you avoid any use of outside content all together. YouTube has become the default, national forum for online video, and, as such, their approach to copyright has a chilling effect on speech and public discourse.

Our library has 93 videos totaling well over a 100 of hours of content on YouTube, but my problems stem from a total of 45-75 seconds of video. Actually, about 25 seconds of a particular video has allowed Sony Music to put a copyright strike on my library’s YouTube account. My library’s YouTube account is still in place and our videos are still visible, but we are no longer able to upload videos longer than 15 minutes, which pretty much limits most of our primary uses. When the violations appeared, I probably should have clicked on the “acknowledge” button, which may have helped to avoid the strike. But, our use falls within fair use, and I decided to challenge the claims against our use.

The following copyright violations were identified through YouTube’s automated system:

1. A lecture given by our campus police chief where he shows a YouTube video (ironically) and YouTube’s bots caught the music in the background of that video. So, the bots caught music in a video within our video. They called this a misuse of 3rd party content, even though the video within our video is made freely available by City of Houston and the music in question is a very small percentage of the work in the background of a video.Our video: http://www.youtube.com/watch?v=5uSYkqR33ecVideo within the video: https://www.youtube.com/watch?v=5VcSwejU2D0

2. A lecture and dance performance from a dance company visiting our college. YouTube’s bots caught the music used by a dancer in a demonstration. After filling out YouTube’s forms claiming fair use, this video was eventually given the green light. We won this one after appealing.Our video: http://www.youtube.com/watch?v=rl_h7DcTcgw

3. (This is the one that put a strike on our account.) A student created video hosted on our account. This was a video project created for a speech class that used 25 seconds of Michael Jackson’s Thriller. When I uploaded it, I knew that this one might be a problem, but I felt that we were safe under the tests of fair use (see Stanford’s Measuring Fair Use: The Four Factors). I have taken this one all the way through the appeal process and have been given a strike.

Of course, I recognize that YouTube/Google is a private company that can set their own rules on their platform, but I also find it troubling that they make money off of all of the content freely given to them. As someone who has given them useful content and driven traffic to their site, I feel that they have a responsibility to me and to the millions of other users like me. They have a responsibility to write rules that do not allow huge companies like Sony to bully their way through the online world.

Just a few months ago, Lawrence Lessig won a suit against Liberation Music in an effort to fight this kind of copyright abuse (see Lawrence Lessig Wins Damages for Bogus Youtube Takedown). Unfortunately, Lawrence Lessig doesn’t work for my library, and it is unlikely that the Electronic Frontier Foundation will swoop in and fight for fair use on my library’s behalf. More than likely, I will have to wait six months until this copyright strike expires, and then will have to become very strict with future videos. The weighing of fair use under US copyright law won’t really matter.

One positive result from this experience is that our librarians have a new example to use when talking to faculty about scholarly communication issues. Our campus has new justification for a campus-hosted video solution that is independent of YouTube. I am fortunate enough to work at a college large enough to implement our own video management system, which is not always possible at smaller colleges or smaller public libraries who depend on services like YouTube. None-the-less, the overall result for us is a chilling effect that helps to avoid this administrative paper chase.

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Troy A. Swanson is Department Chair and Teaching & Learning Librarian at Moraine Valley Community College. He is the author of the book,Managing Social Media in Libraries. You can follow him on Twitter at @t_swanson.

One thought on “Fair Use is in the Eye of the Beholder…or Not by TTW Contributor Troy Swanson”

A liberal interpretation of Fair Use was something I took for granted when I was teaching. Ultimately the beneficiaries were my students. The situation at You Tube provides another example of the hysteria the internet seem to provoke in owners of content, and an Illustration of how far copyright has come from the original purposes for which it was enacted.